KHANGARAM K. DEWASI, MUMBAI V. DCIT- CC-2(3), MUMBAI

MA 43/MUM/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8684 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 15-02-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY J SETHI
• Keywords: Rectification of order; Period of limitation; Time period of passing order
• Section: 143(3); 12A; 195; 143(2); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC MUMBAI BEFORE SHRI SHAMIM YAHYA (ACCOUNTANTMEMBER) AND SHRI PAVAN KUMAR GADALE (JUDICIAL MEMBER) MA NO. 43/MUM/2021 (ITA NO. 2806/MUM/2018) ASSESSMENT YEAR: 2008-09 & MA NO. 44/MUM/2021 (ITA NO. 2807/MUM/2018) ASSESSMENT YEAR: 2009-10 & MA NO. 42/MUM/2021 (ITA NO. 2805/MUM/2018) ASSESSMENT YEAR: 2010-11 MR. KHANGARAM K. DEWASI, PROP. OF SHREENATAHAJI METAL & ALLOYS, SHOP NO. 5, SULTAN MARKET, OPP. ASH KRISHNA BUILDING, ANDHERI GHATKOPAR ROAD, SAKINAKA, ANDHERI-EAST, MUMBAI-400072. VS. DCIT CC-3(2), MUMBAI. PAN NO. AEEPD 8897 C APPELLANT RESPONDENT ASSESSEE BY : MR. BHARAT KUMAR, CA REVENUE BY : MR. SANJAY J. SETHI, DR DATE OF HEARING : 09/07/2021 DATE OF PRONOUNCEMENT : 26/07/2021 MR. KHANGARAM K. DEWASI MA NOS. 42 TO 44/M/2021 2 ORDER PER SHAMIM YAHYA, A.M. BY WAY OF THESE MISCELLANEOUS APPLICATIONS (MAS), THE ASSESSEE SEEKS RECTIFICATION OF MISTAKE APPARENT FROM RECORD IN THE ORDER OF CONSOLIDATED IN ITA NOS. 2806/M/2018, 2807/M/2018 & 2805/M/2018 FOR ASSESSMENT YEARS 2008-09 TO 2010-11. THE SUBMISSION OF THE ASSESSEE IN THE MA IS AS UNDER: 1. HE IS THE PROPRIETOR OF SHREENATHJI METAL AND ALLOYS AND CARRYING ON BUSINESS OF TRADING IN METAL AND ALLOYS AT ROAD SIDE SHOP. 2. THE DCIT CENTRAL CIRCLE 2(3), MUMBAI PASSED ASSESSMENT ORDER, IN HIS CASE, FOR THE ASSESSMENT YEAR (AY) 2008-09 ON 29.03.2015 U/S. 143(3) R.W.S. 147 OF THE ACT, DETERMINING HIS INCOME AT RS.14.50 LAKHS. HE CHALLENGED HIS BEFORE THE COMMISSIONER OF INCOME TAX (APPEAL)-48 MUMBAI, WHO HAD UPHELD THE ADDITIONS MADE BY THE AO. 3. HE HAD FILED AN APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL)-48 MUMBAI, DATED 28.02.2018 BEFORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL (ITAT) MUMBAI. BEFORE THE HON'BLE ITAT HE HAD RAISED 6 (SIX) GROUNDS OF APPEALS INCLUDING 4 (FOUR) GROUNDS OF APPEAL ABOUT THE VALIDITY OF THE REOPENING OF THE CASE. GROUND NO.3 WAS ABOUT RECORDING OF REASONS OF RE-OPENING AFTER ISSUE OF NOTICE U/S. 148. THE FOURTH GROUND OF APPEAL DEALT WITH ISSUE OF NOTICE U/S, 143(2) OF THE ACT. I HAD RAISED GROUNDS ABOUT MERITS OF THE CASE ALSO. 4. THE HON'BLE TRIBUNAL WAS PLEASED TO DECIDE THE APPEAL IN HIS FAVOUR VIDE ITS ORDER DATED 20.12.2019, WHILE ADJUDICATING THE APPEAL THE HON'BLE TRIBUNAL DID NOT GIVE ANY FINDING ABOUT THE GROUNDS DEALING WITH THE VALIDITY OF THE RE-OPENING AND DECIDED THE APPEAL ON MERITS ONLY. 5. HE HAD RECEIVED THE ORDER OF THE HON'BLE TRIBUNAL ON 12/02/2020, AS PER THE PROVISIONS OF 'SECTION 254 (2) OF THE ACT MISCELLANEOUS APPLICATION (MA) IN THIS REGARD HAD TO BE FILED BY 12.08.2020. BECAUSE OF COVID-19, I HAD TO LEAVE MUMBAI FOR A VERY LONG PERIOD. AFTER RETURNING TO MUMBAI FROM MY NATIVE PLACE, I WAS ADVISED TO FILE AN MA, AS THE GROUNDS OF APPEAL DEALING WITH JURISDICTIONAL ISSUE WERE NOT DECIDED. THERE MR. KHANGARAM K. DEWASI MA NOS. 42 TO 44/M/2021 3 IS DELAY OF 195 DAYS IN FILING THE MA. CONSIDERING PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, HE HAS REQUESTED THE HON'BLE TRIBUNAL TO CONDONE THE DELAY OF 195 DAYS. HE HAS ALSO FILED AN AFFIDAVIT, DATED 09 /02/2021, IN THIS REGARD. 6. NON ADJUDICATION OF GROUND OF APPEAL DEALING WITH JURISDICTIONAL ISSUE IS A MISTAKE APPARENT FROM RECORD, AS PER THE PROVISIONS OF SECTION 254 (2) OF THE ACT. THE GROUNDS ABOUT THE JURISDICTION OF THE AO GO TO THE ROOT OF THE MATTER AND REQUIRES SEPARATE ADJUDICATION. 2. AT THE OUTSET, IT IS ALSO NOTED THAT THERE IS A DELAY IN FILING THIS APPEAL, THE ASSESSEE HAS SUBMITTED FOLLOWING SUBMISSION IN THIS RECORD AS UNDER: 1. ASSESSEE RECEIVED ORDER OF HONORABLE ITAT DATED 20.12.2019 ON 15 02.2020. 2. AS PER PERIOD OF LIMITATION PRESCRIBED U/S 254(2) OF THE INCOME TAX ACT, 1961, ASSESSEE NEED TO FILE MISCELLANEOUS APPLICATION ON OR BEFORE 12.08 2020. 3. ASSESSES FILED MISCELLANEOUS APPLICATION ON 1S.02.2021. THEREFORE, THERE WAS DELAY OF 195 DAYS IN FILING MISCELLANEOUS APPLICATION. 4 WE WANT TO SUBMIT THAT HONORABLE SUPREME COURT TOOK SUO MOTO COGNIZANCE FOR PERIOD OF LIMITATION IN FILING APPLICATION WHICH WAS ARISING ONSET OF COVIO-19 PANDEMIC FROM DIFFICULTIES FACED BY THE LITIGANTS ACROSS THE COUNTRY. 5. BY AN ORDER DATED 23.03 2020 THIS COURT EXTENDED THE PERIOD OF LIMITATION PRESCRIBED UNDER THE GENERAL LAW OR SPECIAL LAWS WHETHER COMPOUNDABLE OR NOT WITH EFFECT FROM 15.03.2020 TILL FURTHER ORDERS. 6. ON DATED 08 TH MARCH 2021, HONORABLE SUPREME COURT, EXCLUDED PERIOD WHICH IS AS UNDER:- 1. IN COMPUTING THE PERIOD OF LIMITATION FOR ANY SUIT, APPEAL APPLICATION OR PROCEEDING, THE PERIOD FROM 15.03.2020 TILL 14.03.2021 SHALL STAND EXCLUDED. CONSEQUENTLY, THE BALANCE PERIOD OF LIMITATION REMAINING AS ON 15.03.2020, IF SHALL BECOME AVAILABLE WITH EFFECT FROM 15.03.2021. MR. KHANGARAM K. DEWASI MA NOS. 42 TO 44/M/2021 4 2. IN CASES WHERE THE LIMITATION WOULD HAVE EXPIRED DURING THE PERIOD BETWEEN. 15.03.2020 TILL 14.03.2021, NOTWITHSTANDING THE ACTUAL BALANCE PERIOD OF LIMITATION REMAINING, ALL PERSONS SHALL HAVE A LIMITATION PERIOD OF 90 DAYS FROM 15.03.2021. IN THE EVENT THE ACTUAL BALANCE PERIOD OF LIMITATION REMAINING, WITH EFFECT FROM 15.03.2021, IS GREATER THAN 90 DAYS, THAT LONGER PERIOD SHALL APPLY. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. AT THE OUTSET, IT IS NOTED THAT DELAY OF 195 DAYS IN FILING MA BEFORE THE ITAT IS ATTRIBUTED TO THE COVID-19 PANDEMIC. THE ASSESSEE HAS ALSO REFERRED TO HONBLE SUPREME COURT DECISION DATED MARCH 8 TH 2021 WHEREIN IT HAS BEEN EXPOUNDED THAT IN COMPUTING THE PERIOD OF LIMITATION FOR ANY SUIT, APPLICATION OR PROCEEDINGS, THE PERIOD FROM 15.03.2020 TILL 14.03.2021 SHALL BE EXCLUDED. THE HONBLE SUPREME COURT HAS HELD AS UNDER: 1. DUE TO THE ONSET OF COVID-19 PANDEMIC, THIS COURT TOOK SUO MOTU COGNIZANCE OF THE SITUATION ARISING FROM DIFFICULTIES THAT MIGHT BE FACED BY THE LITIGANTS ACROSS THE COUNTRY IN FILING PETITIONS/APPLICATIONS/SUITS/APPEALS/ALL OTHER PROCEEDINGS WITHIN THE PERIOD OF LIMITATION PRESCRIBED UNDER THE GENERAL LAW OF LIMITATION OR UNDER ANY SPECIAL LAWS (BOTH CENTRAL OR STATE). BY AN ORDER DATED 23.03.2020 THIS COURT EXTENDED THE PERIOD OF LIMITATION PRESCRIBED UNDER THE GENERAL LAW OR SPECIAL LAWS WHETHER COMPOUNDABLE OR NOT WITH EFFECT FROM 15.03.2020 TILL FURTHER ORDERS. THE ORDER DATED 23.03.2020 WAS EXTENDED FROM TIME TO TIME. THOUGH, WE HAVE NOT SEEN THE END OF THE PANDEMIC, THERE IS CONSIDERABLE IMPROVEMENT. THE LOCKDOWN HAS BEEN LIFTED AND THE COUNTRY IS RETURNING TO NORMALCY. ALMOST ALL THE COURTS AND TRIBUNALS ARE FUNCTIONING EITHER PHYSICALLY OR BY VIRTUAL MODE. WE ARE OF THE OPINION THAT THE ORDER DATED 23.03.2020 HAS SERVED ITS PURPOSE AND IN VIEW OF THE CHANGING SCENARIO RELATING TO THE PANDEMIC, THE EXTENSION OF LIMITATION SHOULD COME TO AN END. MR. KHANGARAM K. DEWASI MA NOS. 42 TO 44/M/2021 5 2. WE HAVE CONSIDERED THE SUGGESTIONS OF THE LEARNED ATTORNEY GENERAL FOR INDIA REGARDING THE FUTURE COURSE OF ACTION. WE DEEM IT APPROPRIATE TO ISSUE THE FOLLOWING DIRECTIONS: - 1. IN COMPUTING THE PERIOD OF LIMITATION FOR ANY SUIT, APPEAL, APPLICATION OR PROCEEDING, THE PERIOD FROM 15.03.2020 TILL 14.03.2021 SHALL STAND EXCLUDED. CONSEQUENTLY, THE BALANCE PERIOD OF LIMITATION REMAINING AS ON 15.03.2020, IF ANY, SHALL BECOME AVAILABLE WITH EFFECT FROM 15.03.2021. 2. IN CASES WHERE THE LIMITATION WOULD HAVE EXPIRED DURING THE PERIOD BETWEEN 15.03.2020 TILL 14.03.2021, NOTWITHSTANDING THE ACTUAL BALANCE PERIOD OF LIMITATION REMAINING, ALL PERSONS SHALL HAVE A LIMITATION PERIOD OF 90 DAYS FROM 15.03.2021. IN THE EVENT THE ACTUAL BALANCE PERIOD OF LIMITATION REMAINING, WITH EFFECT FROM 15.03.2021, IS GREATER THAN 90 DAYS, THAT LONGER PERIOD SHALL APPLY. 3. THE PERIOD FROM 15.03.2020 TILL 14.03.2021 SHALL ALSO STAND EXCLUDED IN COMPUTING THE PERIODS PRESCRIBED UNDER SECTIONS 23 (4) AND 29A OF THE ARBITRATION AND CONCILIATION ACT, 1996, SECTION 12A OF THE COMMERCIAL COURTS ACT, 2015 AND PROVISOS (B) AND (C) OF SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 AND ANY OTHER LAWS, WHICH PRESCRIBE PERIOD(S) OF LIMITATION FOR INSTITUTING PROCEEDINGS, OUTER LIMITS (WITHIN WHICH THE COURT OR TRIBUNAL CAN CONDONE DELAY) AND TERMINATION OF PROCEEDINGS. 4. THE GOVERNMENT OF INDIA SHALL AMEND THE GUIDELINES FOR CONTAINMENT ZONES, TO STATE. REGULATED MOVEMENT WILL BE ALLOWED FOR MEDICAL EMERGENCIES, PROVISION OF ESSENTIAL GOODS AND SERVICES, AND OTHER NECESSARY FUNCTIONS, SUCH AS, TIME BOUND APPLICATIONS, INCLUDING FOR LEGAL PURPOSES, AND EDUCATIONAL AND JOB-RELATED REQUIREMENTS. HENCE, IN VIEW OF LAW DECLARED BY THE HONBLE SUPREME COURT, THE MA IS DULY ADMITTED. MR. KHANGARAM K. DEWASI MA NOS. 42 TO 44/M/2021 6 4. AS REGARDS, THE MERITS OF THE APPLICATION, THE PLEA IS THAT ITAT HAS NOT ADJUDICATED THE ASSESSEES GROUNDS OF APPEAL, REGARDING THE ISSUE OF VALIDITY OF JURISDICTION FOR PASSING THE ASSESSMENT ORDER. WE NOTE THAT ITAT IN ITS ORDER HAS HELD AS UNDER ON THIS ISSUE IN PARA 4 OF ITAT ORDER: 4. THE ASSESSEE HAS ALSO CHALLENGED THE VALIDITY OF JURISDICTION OF THE ASSESSMENT. SINCE, WE HAVE ALREADY DELETED THE ADDITIONS ON MERITS, IN OUR CONSIDERED OPINION CONSIDERATION ON VALIDITY OF JURISDICTION OF THE ASSESSING OFFICER IS ONLY OF ACADEMIC INTEREST. HENCE, WE ARE NOT ENGAGING THE SAME. SINCE, ITAT HAS NOT ADJUDICATED THE ABOVE, THERE IS ADMITTEDLY MISTAKE APPARENT FROM RECORD, IN THIS REGARD, AS ASSESSEE IS AGGRIEVED. ACCORDINGLY, THESE APPEALS ARE RECALLED ONLY TO CONSIDER THE ISSUE OF ASSESSEES CHALLENGE TO JURISDICTION, WHICH HAS NOT BEEN ADJUDICATED. HENCE, WE RECALL THESE APPEALS QUA THE ISSUE OF VALIDITY OF JURISDICTION FOR ASSESSMENT WHICH HAS REMAINED UN-ADJUDICATED. WE DIRECT THE REGISTRY TO FIX THESE CASES FOR HEARING IN THE NORMAL COURSE. 5. IN THE RESULT, THESE MAS ARE STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26/07/2021. SD/- SD/- ( PAVAN KUMAR GADAL E ) ( SHAMIM YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED: 26/07/2021 RAHUL SHARMA, SR. P.S. MR. KHANGARAM K. DEWASI MA NOS. 42 TO 44/M/2021 7 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI